Top critical review

John Yoo's The powers of war and peace: the constitution and foreign affairs after 9/11 (2005) employs three true statements to conclude that presidents have "sole authority to initiate hostilities." First, he uses an "original understanding" doctrine to demonstrate that, in the late eighteenth century, Americans, Britons, and others, all understood the initiation of hostilities as a royal prerogative. He documents this fact with contemporary dictionary citations and numerous citations from legal and scholarly works. Second, Yoo notes that presidents have always made the initial decision. Third, Congress has declared war on only four occasions, and not once since WWII.

From these three certainly true facts, he concludes that, "Declarations of war serve a purpose, albeit one that does not answer to the sole authority to initiate hostilities. Declarations do simply what they say they do: they declare. To use the eighteenth-century understanding, they make public, show openly, and make known the state of international legal relationship between the United States and another country" (151).

Yet, unless one is already predisposed to believe that presidents have "sole authority," it is difficult to agree with Yoo's conclusion. The point he ignores is that, in 1776, the colonists rebelled against all royal prerogatives, thereby radically changing the definition of executive power. Further, in 1787, the Founders drafted a Constitution specifically designed to repudiate kings, their prerogatives, and all the trappings of monarchy, including the royal prerogative to declare war. Consequently, the revolution that is the Declare War was drafted specifically to overturn the "original understanding" of previous centuries. That the Congress has subsequently been incapable of exercising its responsibilities under the Declare War Clause is both true, and not a reason to celebrate. Rather, it is a reason to rededicate oneself to the unfinished anti-royalist revolution of 1787.

Still, if one is already predisposed to believe that presidents have "sole authority to initiate hostilities," then Yoo's account is about as strong a defense of that position as has been made.

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Professor John Yoo, an accomplished constitutional scholar, has written a outstanding volume exploring the U.S. Constitution's allocation of powers in matters of war and international affairs. This overview of our Constitution's framework for understanding the roles and relations of the three branches of government in based upon clear reasoning and close attention to history and practice.

Yoo deftly analyzes the respective roles of the Executive and Legislative branches in making and declaring war, arguing that the Constitution provides for a great deal of flexibility and latitude in dealings with foreign nations. He aptly deals with the debate over whether international treaties are generally self-executing or require implementing legislation, making a persuasive argument for the latter position as most consistent with the text and structure of the Constitution. Yoo also provides a sensible and coherent constitutional approach to understanding and distinguishing between treaties and congressional-executive agreements. These topics and others are treated in a careful and methodical manner, as Yoo generally argues from the viewpoint that the Constitution should be read in light of the original understanding of its ratifiers. He (wisely) advocates a conceptual framework for understanding our Constitution's approach to foreign affairs that is relevant and resembles actual historical and contemporary practice. (This is something that many scholars and theorists fail to do.)

Throughout the book, Yoo demonstrates a mastery of both the constitutional case law in this interesting area and the legal scholarship that precedes his own work.

The book is written in a clear and lucid manner, providing repetition on important points while avoiding any sense of repetitiveness. It is accessible to both those who are familiar with constitutional history and constitutional law concerning the separation of powers as well as those with some historical and legal background in those areas.

This review can only scratch the surface in terms of the content of this work. Yoo's book is a first-rate intellectual achievement. And it will likely become a standard, authoritative reference for citizens and scholars (and especially originalists) in the years to come.